Khushali (Petitioner) v. Rani (Opposite Party).

Tyrrell, J. and Oldfield, J.:— The Judge has not sufficiently inquired into the facts of this case, and he does not appear to have rightly appreciated the hearing on it of the terms of Act XV of 1856. The mother of the minor a Hindu Sonar has re-married. It does not appear that the minor's father made her the guardian of his child, and it was suggested that property has been left which may be sufficient for the support and education of the child. Under these circumstances the Court would ordinarily regard the child, whose mother has been re-married, and has not the veto provided in the last portion of s. 3 of the Act, as a person “who has neither father nor mother” in the sense of that section. In such a case a proper male relative of the deceased father would presumably be the child's guardian in preference to his re-married mother: and the Court's power to appoint him, which is no doubt discretionary should ordinarily be exercised failing good cause shown to the contrary. No such cause has here been shown, and the Judge improperly imposed on the paternal relative the burden of proof in this respect. The order of the Judge is annulled: and the case is remanded to the District Court for proper determination on its merits. The costs of this appeal will abide the result.

Cause remanded.